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The Curse of 60. There is talk that because the Senate will now have “only 59” Democrats, President Obama will have to compromise on the kind of person he nominates for the next Supreme Court vacancy. But how did it become thinkable that a Supreme Court nominee could be denied an up or down vote by a minority of the Senate? President George H. W. Bush had only 43 Republican Senators when he nominated Judge Clarence Thomas – undoubtedly the most conservative nominee of the past half-century – to the Supreme Court. That’s right: 43 Senators of his party. In the end, Justice Thomas was confirmed 52 to 48. The nomination was not remotely close to having enough Senators to prevail on a cloture vote – that would have required all 43 Republicans, joined by 17 Democrats. But he was confirmed because the settled expectation was that the President and the country are entitled to have an up or down vote on a matter such as a Supreme Court nomination. A filibuster that prevented such a vote was politically unthinkable.

We are dangerously close to a new political paradigm that accepts 60 as the new 50. There is a case to be made that the Obama Administration would have been better off with, say, 55 Democratic Senators than with the “now-you-see-it, now-you-don’t” elusive phantom of the “Sixtieth Senator.” Without 60 Senators, Obama would have necessarily moved ahead with nominations and legislation that had majority support of 50 or more Senators. It would have been (I think) politically unthinkable that the Republicans would have brought government to a halt by endless filibusters that prevented nominees and legislation from coming to an up or down vote. But because Senate Democrats have been teetering on the verge of having Sixty votes, the temptation has been hold back and do everything possible to assembly sixty votes rather than undertake to wait out a filibuster.

With “only” 53 or 55 Democratic Senators, (a number Democrats would have been very happy to have on the eve of the 2008 election) there would not have been the months of trying to get the magic number of 60 Senatorial cats all in one bag at one time. There is no reason to think such a bill would have been ‘watered-down.” A health care bill the President supported would have been moved to the floor and those months spend pleading and compromising with one or two Senators to get to 60 would instead have been spent in a filibuster. For how long would the country have stood for endless debate that prevented an up or down vote? It’s time to go back to the math we learned in grade school and to convince the electorate that fifty plus one is a majority of a hundred.

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